Killing Osama

May 27, 2011

Politicians from across the political spectrum in the United States have been quick to hail the death of Osama bin Laden at the hands of US special forces as an act of justice.  The operation may have been many things, but the exercise of the due process of law it was not.

The Obama administration has yet to set out the legal grounds under which the operation in Pakistan was conducted, with senior officials characterizing it variously as an act of national self-defense or a military engagement. From a legal standpoint neither framework is a particularly good fit.

What the operation to ‘kill or capture’ bin Laden resembles most closely is the kind of targeted assassination mission frequently undertaken by the Israeli Defense Forces and this begs the question, has the US now fully embraced a similar policy?

The US has been flirting with such a policy for years – ever since a 2002 drone strike in Yemen killed Abu Ali al-Harithi and five other suspected members of Al Qaeda, including one US national. Since coming into office the Obama administration has greatly ramped up the use of drone strikes in the Federally Administered Tribal Areas of Pakistan.

Over the past decade US operations have been at least notionally limited by a tacit sense that such methods are limited to military theaters such as Iraq and Afghanistan and contiguous border areas. That consensus now seems to be breaking down with potentially far-reaching implications.

Congress is currently debating a new National Defense Authorization Bill that contains language aimed at updating the post-September 11th Authorization for the Use of Military Force (AUMF), which provides the domestic legal basis for the US operations against Al Qaeda.

New language written into the bill by Rep. Buck McKeon (R-CA) in the bill could potentially greatly expand the existing scope of the ‘war in terror’ to include:

“Nations, organization, and persons who— (A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or (B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A).”

Language this broad is open to wide interpretation – especially when one considers just how expansively US courts have already defined the concept of ‘material support’.

The potential widening of the ‘war on terror’ to new fronts is no idle threat.

Only last week five Republican members of the Senate Judiciary Committee wrote to Attorney-General Eric Holder urging him not to pursue a case against Ali Mussa Daqduq, a senior member of Hezbollah detained in Iraq in 2007, in federal court but rather send him for trial before the Military Commissions in Guantanamo Bay.

There are extenuating circumstances but nevertheless explicitly treating a member of Hezbollah under the AUMF framework would represent a dramatic extension of the ‘war on terror’ and if this were to go forward it could create a precedent for other of the forty-eight Foreign Terrorist Organizations designated by the State Department to be similarly targeted. Talk about strategic overstretch!

Even close US allies are concerned at the potentially destabilizing creep of US military operations into new theaters. A report produced in the aftermath of bin Laden’s death by researchers from the United Kingdom’s House of Commons Library highlighted this potential danger:

“A wider implication is that the killing may be seen as a precedent for targeted killings of individuals by any state, across international boundaries, at least where terrorism is involved.”

The report noted that Israel, Turkey and Colombia have all used force against a non-state actor in another sovereign state, in the context of the fights against terrorism, in recent years. The use of such methods is becoming more and more widespread.  Just last month Israel is believed to have been behind a missile strike in Sudan that killed a senior Hamas procurement official.

It is not too great a leap of imagination to see other states using this rubric to silence political opposition abroad. Since 1979, for instance, the senior leadership of the Islamic Republic of Iran has been linked to at least 162 extrajudicial killings of the regime’s political opponents in 19 different countries around the world.

If we let the genie out of the bottle by claiming the right to assassinate potential threats to our security around the world, plenty of other states are going to want to do the same. By making assassination politically acceptable the United States is going to be directly responsible for making the world an even more dangerous place than it already is.